(Appellate Jurisdiction)




HKSAR Respondent


Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 8 May 2002

Date of Judgment: 8 May 2002




1. This is an appeal against conviction only.

2. The appellant who appears in person before me was convicted of an offence of living on the earnings of prostitution, contrary tosection 137(1) of the Crimes Ordinance, Cap. 200.

3. Her general ground of appeal is that her conviction was against the weight of the evidence. She also complains that the Duty LawyerScheme, which provided the lawyer who represented her during the course of the magistracy trial, did not allow her to change thatlawyer during the trial as she wished.

4. The facts of the case as found by the magistrate were that the appellant was the head tenant of a number of rooms in the buildingin which she lived. On the charged occasion, PW1, an undercover police officer, had met the appellant outside a restaurant afterringing a particular phone number for the purposes of arranging the services of a prostitute. The appellant and he, when they met,then had a conversation about the obtaining of such services. The appellant asked PW1 to follow her. He was led to a room to whichthe appellant eventually brought a girl. The appellant then collected money from PW1. That money unbeknown to the appellant was marked.The money was subsequently found in the appellant’s handbag when she was arrested by other police officers at a later stage whenshe was returning to the room where she had left PW1 and the girl.

5. The appellant’s case which was rejected by the magistrate was that she had coincidentally met PW1 outside her building and he askedher if a particular female was at home. This female was known to the appellant. The officer followed her into the building, met thefemale, and he and that female went off to another room in the building which was rented by the appellant to that female. The appellantwent with them to collect some of her own property which was still in the room. As they went into the room, that other female gaveher HK$300 dollars for rental monies which the appellant subsequently put in her handbag. The appellant then collected her belongingsand left the room. Later, she decided to go back to the room to get medicine for her dog. She had a key to the door and let herselfin. It was at that point she was arrested by other officers.

6. The magistrate rejected the appellant’s evidence. He found it implausible. He was perfectly entitled to do so. It was based fundamentallyupon a series of timely and unbelievable coincidences. The magistrate also rejected the evidence of the other female, a Mainlandprostitute, given in the same terms as that of the appellant. The magistrate described the latter’s evidence, additionally, as beinggiven “as if she was reading a script”. He was entitled to regard her evidence in that light. He was in the best position to makesuch an assessment.

7. The magistrate accepted PW1’s evidence. He was entitled to do so. It was detailed and cohesive. It was supported in some of its aspectsby other evidence presented during the course of the trial. If PW1’s evidence had been fabricated as the appellant alleges, it wasdone so in considerable detail and in a way which gave it the ring of truth. No reason for any such fabrication was advanced beforethe magistrate or before me by the appellant.

8. In short, the magistrate was entitled to arrive at the findings of fact he made based on the evidence before him. His approach tothe evidence was proper. The appellant was unable to effectively criticize the magistrate’s approach to the evidence in any substantivesense before me. The magistrate’s findings of fact established the offence. That disposes of the appellant’s general ground of appeal.

9. She raises another complaint. That is that she attempted to change her lawyer during the trial but was told by the Duty Lawyer Schemethat no other lawyer was available. She felt her lawyer was not generally doing a good enough job and that particularly he had misledher by getting her to agree to something she did not understand. The only matter the appellant agreed to during the trial were admittedfacts. Those facts were purely formal in nature. I am sure that her lawyer had received proper instructions in this regard. Whatthe appellant may had been confused about was the magistrate asking her directly whether she agreed to those facts. There is nothingin this aspect of her complaint.

10. So far as her not being able to change her lawyer is concerned, the Duty Lawyer Scheme is not there to provide a lawyer of choice.It provides competent and qualified lawyers for persons who would otherwise be unrepresented. No doubt the scheme is administeredwith as much flexibility as possible, but defendants do not and cannot have a right to be represented by a lawyer of their choiceunder that scheme. If a defendant is dissatisfied with a duty lawyer’s representation then their only alternative rights are eitherto retain a lawyer privately or to appear in person. The appellant in the present case chose to continue with her existing lawyer.From what can be seen from the transcript before me, he represented her capably and competently.

11. There is nothing in the appellant’s ground of appeal or complaints and the appeal against conviction is dismissed.

( M.A. McMahon )
Deputy High Court Judge


Mr Chiu Wai Tin, GC of the Department of Justice, for the Respondent

Appellant in person